Review of the operation of Subdivision A of Division 6
of Part VIIC of the Crimes Act 1914
Final report
September 2011
Contents
1.Introduction
2.Background
History of the amendments
Working with children criminal history provisions — Subdivision A of Division 6
of Part VIIC of the Crimes Act
3.Conduct of the review
Parameters of the review
Information sought
4.The utility of information provided under Subdivision A
Screening agency views
Data
5.Safeguards
6.Complaints
7.Operational issues
CrimTrac
Australian Federal Police
8.Views on the operation of Subdivision A
Support
Concerns and issues
9.Discussion
Appendix A – Responses received by the review
Appendix B – Compliance with safeguards
1.Introduction
1.1Part VIIC of the Crimes Act 1914 (Cth) (the Crimes Act) governs the disclosure and
non-disclosure of Commonwealth pardons, quashed convictions and spent convictions.
In March 2010, the Crimes Amendment (Working With Children—Criminal History) Act 2010 (Cth) amended Part VIIC to insert new Subdivision A into Division 6 of that Part.
1.2Subdivision A allows information about pardoned, quashed or spent convictions to be disclosed to and taken into account by prescribed persons or bodiesfor the purpose of assessing whether a person is suitable for work with children. This serves as an exception to the general rule that such information is not to be disclosed or taken into account.
1.3Section 85ZZGG of the Crimes Actrequires the Minister for Justice to initiate two reviews of the operation of Subdivision A:
85ZZGG Reviews of operation of this Subdivision
(1) The Minister must cause 2 reviews of the operation of this Subdivision to be conducted.
(2) The first review must:
(a) start not later than 30June 2011; and
(b) be completed within 3 months.
(3) The 2nd review must:
(a) start not later than 30June 2013; and
(b) be completed within 3 months.
(4) The Minister must cause a written report about each review to be prepared.
(5) The Minister must cause a copy of each report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
1.4The first review commenced on 30 June 2011 and was completed on 30 September 2011. A report of the review’s findings is below.
2.Background
History of the amendments
2.1The amendments made by the Crimes Amendment (Working With Children—Criminal History) Act 2010 (Cth) (the Working with Children Act) were developed in response to a 2008 Council of Australian Governments (COAG) decision. In November 2008, COAG agreed to develop an inter-jurisdictional exchange of ‘expanded’ criminal history information for people working with children. ‘Expanded’ criminal history information includes details about pardoned, quashed and spent convictions. Such information was not routinely shared across State and Territory borders prior to the agreement.
2.2The decision to share expanded criminal history information was made to ensure that an individual’s full criminal history is taken into consideration when determining their suitability for work with children. In 2001, the Australian Institute of Criminology’s report Child sexual abuse: offender characteristics and modus operandinoted that incarcerated sexual offenders are more likely to have previous convictions for non-sexual offences than for sexual offences. In addition, information from law enforcement agencies had previously indicated that charges relating to offences against children are often withdrawn as a decision is made to protect the child victim from the stress and trauma of giving evidence, undergoing cross-examination and waiting for committal and trial.
2.3The COAG agreement was implemented by means of a Memorandum of Understanding (MOU) between the Commonwealth, States and Territories.[1] The MOU establishes a ‘national exchange of criminal history information’ through which jurisdictions are to share expanded criminal history information held by jurisdictions’ police services. This scheme is referred to as the Exchange of Criminal History Information for People Working with Children (ECHIPWC).
2.4The MOUspecifies arrangements for how this information is to be exchanged, as well asparticipation requirements for the screening agenciesthat receive the information.
Screening agencies are organisations that assess whether someone is suitable for working with children. These assessments are conducted upon a request being made by an employer seeking to employ someone in child-related work.
2.5The MOU also provides for the exchange of ‘additional information’ held by jurisdictions’ police services about the circumstances of particular convictions,to the extent that such information is available. Additional information mayinclude the ages of the victimand the offender at the time of the offence, whether the offence involved children, the relationship between the offender and any child involved and other relevant information.
2.6Clause 4.8 of the MOU calls on participating parties to make any legislative and administrative changes necessary to facilitate the supply of information under the exchange. The Working with Children Actwas the means by which the Commonwealth implemented these changes.
2.7The Attorney-General’s Department notes that, pursuant to Part 9 of the MOU, an evaluation of the exchange’s operation has taken place following an initial 12-month trial period.
Working with children criminal history provisions — Subdivision A of Division 6 of Part VIICof the Crimes Act
2.8Subdivision A is located in Division 6 of Part VIIC of the Crimes Act.
2.9Part VIIC governs when Commonwealth convictions can be considered to be pardoned, quashed or spent. It also creates general rules regarding the circumstances in which a person is no longer required to disclose his or her convictions, as well as the circumstances in which others cannot disclose or take into account those convictions.
2.10Division 6 creates exclusions to the general rules in Part VIIC. These exclusions enable other people to disclose information about pardoned, quashed and spent convictions, or take them into account without a person’s consent in particular circumstances.
2.11Prior to the passage of the Working with Children Act, former paragraphs 85ZZH(e) and (f) in Division 6provided that spent convictions could be disclosed where:
(e) a person or body who employs or otherwise engages other persons in relation to the care, instruction or supervision of minors, for the purpose of finding out whether a person who is being assessed by the person or body for that employment or engagement has been convicted of a designated offence;
(f) a person or body who otherwise makes available care, instruction or supervision services for minors, for the purpose of finding out whether a person who is being assessed by the person or body in connection with those services has been convicted of a designated offence;
2.12Information about pardoned and quashed convictions was generally prohibited from being disclosed.
2.13The Working with Children Act repealed the above paragraphs and introduced new Subdivision A to deal with the disclosure of Commonwealth convictions for people seeking to work with children. Subdivision A operates to:
- Provide for new exclusions which allow the disclosure of information:
-about a person’s pardoned, quashed and spentconvictions
-to or by a prescribed person or body permitted or required by or under a prescribed law to obtain and deal with information about persons who work, or seek to work, with children, and
-for the purpose of obtaining or dealing with such information in accordance with the prescribed law.
- Define ‘child’ and ‘work’ for the purposes of the new exclusions.
- Specify criteria that persons or bodies must meet before they can be prescribed to enable them to obtain and deal with Commonwealth criminal history information. These criteria reflect the requirements of the COAG agreement and include compliance with applicable privacy, human rights and records management legislation, natural justice principles and implementation of risk assessment frameworks.
- Require the Minister for Justice to cause two reviews of the operation of the new provisions to be conducted after 12 months and after 3 years of operation.
2.14The practical effect of Subdivision A is that information about Commonwealth pardoned, quashed and spent convictionscan now be disclosed to screening agenciesthat conduct Working with Children Checkswhenrequestsare made for a person’s criminal history information. The disclosure process is facilitated by the Australian Federal Police and CrimTrac (see part 7 below for further information).
2.15Criminal history information may only be disclosed to screening agencies that have been prescribed by the Crimes Regulations 1990 (Cth)(the Crimes Regulations). Under section 85ZZGE of the Crimes Act, before an agency can be prescribed the Minister must be satisfied that it:
- is required or permitted under a Commonwealth, State or Territory law to deal with information about people working with children
- complies with applicable privacy, human rights and records management laws
- complies with principles of natural justice, and
- hasa risk assessment framework in place and appropriately qualified staff.
2.16There are currently 10 screening agencies prescribed by the Crimes Regulations.[2]
3.Conduct of the review
3.1On 30 June 2011, the Minister for Justice, the Hon Brendan O’Connor MP, wrote to prescribed screening agencies, Government agencies and a range of other organisations to gather information and views about the operation of Subdivision A. Responses were requested by 11 August 2011.
3.2Responses were received from all prescribed screening agenciesand 16other bodies. A list of agencies and bodies that provided responses is at Appendix A.
Parameters of the review
3.3The object of Subdivision A is to help protect children from sexual, physical and emotional harm.[3] In conducting the review, the Attorney-General’s Department sought to establish whether the availability of information about Commonwealth pardoned, quashed and spent convictions hashelped to achieve this objective by improvingscreening agencies’
decision-making when assessing people’s suitability for working with children.
3.4To ensure that information disclosed under Subdivision A is being used and treated appropriately, the Attorney-General’s Department also sought to establish whether the safeguards in section 85ZZGE of the Crimes Act continue to be complied with by screening agencies, as well as whether any complaints or other issues have arisen as a result of Subdivision A’s operation.
Information sought
3.5Prescribed screening agencies were asked the following questions:
- Has access to criminal history information about a person’s spent, pardoned and quashed Commonwealth convictions enhanced your agency’s decision-making when determining whether individuals are suitable for working with children? If yes, how and in what ways?
It would be particularly useful if you could provide information or data about the following:
-the number of instances in which information about a person’s pardoned, quashed or spent Commonwealth convictions has led to a finding that someone is not suitable for working with children
-the number of checks conducted that have taken into account information about a person’s pardoned, quashed or spent Commonwealth convictions
-the types of Commonwealth conviction that are being disclosed to your agency, or
-any other information which you consider relevant.
- Does your organisation continue to comply with the safeguards listed in section 85ZZGE of the Crimes Act?
- Are you aware of any complaints about the use or handling of information provided under Subdivision A?
- Are there any additional issues which you wish to discuss in relation to this matter?
3.6The Office of the Australian Information Commissioner and State and Territory Privacy and Information Commissioners were asked whether any complaints have been received in relation to the disclosure of Commonwealth pardoned, quashed and spent convictions.
3.7The Australian Federal Police and CrimTracwere asked to provide information on operational aspects of the provisions.
3.8Other bodies were invited to share any views on the operation of the provisions.
4.The utility of information provided under Subdivision A
4.1As noted above, screening agencies were asked whether access to information about spent, pardoned and quashed Commonwealth convictions hasenhanced their
decision-making when assessing a person’s suitability to work with children.
Screening agency views
4.2All screening agencies expressed the view that information provided under Subdivision A has improved their ability to assess risks to children, particularly in light of itsrole in the broader ECHIPWC scheme. Having access to more extensive information about a person’s criminal history allows a more thorough assessment to be made about that person’s suitabilityand has increased screening agencies’ confidence in their decisions.
4.3Several screening agencies noted that access to information about pardoned, quashed and spent convictionsfrom within their own jurisdictionshas been available for some time. Having access to such information from other jurisdictions has improved the consistency of checks by providing this background regardless of where offences are committed in Australia.
Data
4.4Screening agencies were able to provide some data about the Commonwealth criminal history information they receive. However,there is currently no requirement to collect data and the data provided generally did not cover the full range of information sought by the review. Several screening agencies indicated that data about the quantity and nature of convictions disclosed to them is not collected or stored in an easily accessible manner. Collecting and compiling such information was not feasible due to the costs and labour involved.
4.5For further discussion of this issue and recommendations about future approaches to data collection, see paragraphs 9.8 to 9.10. The data provided by screening agencies is outlined below.
New South Wales screening agencies
4.6The NSW Commission for Children and Young People provided a coordinated response on behalf of all prescribed screening agencies in NSW.
4.7The Commission advised that information disclosed under the ECHIPWC arrangements has been relied on in several cases to determine that a person could not work with children. The Commission did not provide details about the jurisdictions from which this information originated, or the extent to which information provided under Subdivision A may have informed these decisions.
4.8The Commission noted that the names of some screening agencies have changed following the change of government in NSW earlier this year. The Attorney-General’s Department will update regulation 7A of the Crimes Regulations accordingly.
Department of Justice (Vic)
4.9The Department of Justice (Vic) advised that information provided under Subdivision A has assisted in assessing the suitability of one applicant. The information related to a spent conviction and resulted in the applicant being denied permission to engage in child-related work.
4.10The Department has not assessed a person’s suitability based on pardoned or quashed convictions.
4.11The types of offences being disclosed to the Department primarily involve possession or transmission of child pornography, or censorship offences.
Commission for Children and Young People and Child Guardian (Qld)
4.12The Commission for Children and Young People and Child Guardian (Qld) advised that there have been no instances to date of a person being denied a ‘blue card’ on the basis of information about Commonwealth pardoned, quashed and spent convictions. Issuance of a ‘blue card’ determines whether a person, with the exception of police officers and registered teachers, can work with children in certain service environments in Queensland.
4.13There have been numerous returns of Commonwealth convictions information of this nature and 12 requests for additional information (see paragraph 2.5 above) relating to those convictions have been made.
4.14While the majority of offences returned have been minor, the Commission provided the following list of examples of the types of Commonwealth pardoned, quashed and spent convictions which have been disclosed to themand for which further information was requested as part of the application of the Commission’s risk assessment framework, noting that some of the offences listed were State offences that have a federal aspect as defined by section 3AA of the Crimes Act:
- knowingly concerned in importing a prohibited import
- negligent acts causing grievous bodily harm
- intentionally inflicting grievous bodily harm
- common assault
- negligent driving
- possession and administration of steroids
- using a carriage service to menace, harass or cause offence
- knowingly concerned in kidnapping
- attempting to pervert the course of justice
- importation offences
- trafficking offences
- indecent exposure
- indecent manner
- threatened act of indecency
- unlawfully confining a person
- carnal knowledge
- possession, supply, cultivation of cannabis
- fraud offences, such as obtaining a financial advantage, where the matter was heard interstate and therefore would not appear on a Queensland criminal history, and
- theft.
4.15The Commission noted that, in its risk assessment process, examples of offences which may adversely affect a person’s eligibility include sex offences, assault offences, drug offences and serious property offences. Examples of offences which are not considered to adversely affect a person’s eligibility include fraud, traffic offences and minor property offences.
4.16Even if an offence is of a type that raises concerns about a person’s eligibility to work with children, the application of the Commission’s risk assessment framework and consideration of additional information (including submissions from the applicant and relevant referees)and context about the offence can lead to a finding that a person is nevertheless eligible to work with children. This process involves consideration of the following: the type, number and seriousness ofconvictions or charges; the recentness of convictions or charges; the relevance of convictions or charges to child-related activities; the veracity of relevant evidence; evidence of identifiable attempts to change behaviour or address triggers for initial offending; and any other identified risk or protective factors.
Queensland College of Teachers (Qld)
4.17The Queensland College of Teachers advised that it has conducted 212 checks which took into account information provided under the ECHIPWC arrangements. It has not found any people unsuitable to work with children on the basis of this information.
4.18The types of offences disclosed to the College of Teachers have included public nuisance, stealing, fraud, traffic offences and a small number of child-related offences.
As noted in relation to the Commission for Children and Young People and Child Guardian,
risk assessment frameworks are applied to all offences to determine whether or not they render a person unsuitable for work with children. Additional information and context about the offences are taken into account where appropriate.
Department for Child Protection (WA)
4.19The Department for Child Protection (WA) advised that approximately 18% of applicants for a Working with Children Check have some kind of criminal record. Of that 18%, about 80% have‘matches’ for Western Australian offences and about 2% have matches for Commonwealth offences. The Department noted that one match in relation to a particular individual can cover multiple charges or convictions.